Welcome to the fastest and easiest way to find out about Inheritance Law in New York. If someone you love has recently died, and you've been named as a beneficiary in a Will or a trust, or if you are an heir of someone who died without a Will or a trust, or if you've been named as an executor of a Will or trustee of a living trust, you can use this site to find out what you'll need to do to inherit or settle an estate or trust.
Here, you'll find clear and accurate information about how to inherit property, including:
A will is a legal document in which a person, the testator, states his or her wishes for the distribution of property at death. If the person has young children, the will usually also nominates guardians for them--someone who would raise the children if the parents couldn't. A will also names an executor, also called a personal representative, who is the person who will settle the estate, and, if a probate is necessary, be appointed as the legal representative of the estate until it is distributed to the will's beneficiaries.
A will doens't need a lot of magic words to be valid. But the person making the will must:
understand what he or she is doing (this is called legal capacity)
identify himself or herself
name beneficiaries for his or her property, and
sign the will in front of witnesses, according to state law.
Some states allow a person to handwrite a will (this is called a holographic will), but it's better to type one out. That way, it's easier to see if someone else has tried to change the will.
Where Are Wills Stored?
If you want to find the will of soemone who has died, where should you look? There's no official place for people to store their wills, and there's no state registry to store your will before you die. Most people store their wills with their other important papers, sometimes in a safe deposit box,sometimes in a fireproof safe or cabinet in their homes, sometimes just in a box with other important papers.
Ideally, you want to find the original, signed will, not a copy. If all you can find is a copy, you can submit that to the probate court and explain to the court that you couldn't locate the original. If no one else comes forward with an original will for that person, and no other evidence can be found that another will was created, the court may accept a copy of a will.
If, after a thorough search, no one can find a will at all, you'll have to conclude that there is no will. In that case, the person's estate will be subject to the state's rules about how inherits when there is no will.
When a person dies and leaves behind a will, whoever has possession of the will is supposed to submit it to the probate court in the county where that person died. This is sometimes called "lodging" the will. Once lodged, the will becomes a public record, to be read by anyone who's interested in what it says.Here's a link to your state's probate courts.
Even though the law requires that a will be submitted to the local probate court, there are really no actual penalties for not doing so, especially if the estate is too small for probate to be required. If an estate does have to go through probate, though, filing the will is the first step in getting that process started.
How to Read a Will
It's not like the movies. Hardly any families have a meeting with a lawyer to read the will aloud. Instead, reading a will is like reading any legal document--take it slow, look up words that you do not know, and focus on what the document actually says, as opposed to what you wish it would say. When you are reading a will, here's what you need to find out:
Who is named as the executor or personal representative? This is the person who is in charge of settling the estate.
Who are the beneficiaries? These are the people who inherit the property.
Is there a survival requirement? Most wills require that beneficiaries must survive the deceased person by a certain period of time, often five or 30 days, before they can inherit.
Are there any special conditions that need to be met before the estate can be distributed? Does the will require, for example, that the will-maker's son enroll in a college degree program before he can receive his share of the property?
Was the will properly signed? You need to make sure that the will was properly signed in front of witnesses, meeting the state's requirements.
Are there any codicils to the will? A codicil is a separate document, signed later, that changes some of the terms of the will.
How to Settle an Estate When There's a Will
If the value of a person's estate is above a certain limit, called a "small estates limit," their estate must go through a probate proceeding before assets can be distributed to the people who inherit the assets. This is true whether or not there is a will.
Probate is a process that takes place in court. The purpose of probate is to make sure that a deceased person's wishes are respected and that their property is distibuted as directed by their will. The person named in the will as the executor, or personal representative, is appointed by the court. After that, the executor is in charge of protecting the estate's assets, identifying and valuing them, paying the debts and expenses of the deceased person, and, in the end, distributing the assets as directed by the will.
If a person left a will, but dies with a small estate, as determined by each state, the estate does not need to go through a formal probate proceeding. Instead, the executor or personal representative can file some simple paperwork and then pay the last bills and expenses, identify the property, and distribute it to the beneficiaires. (Each state's process is a little different.)
When a person dies without a will, or if the will cannot be found, then the estate will be distributed to their heirs, as determined by state law. These laws are called intestacy statutes. For example, in most states, if a person dies and leaves behind no spouse but two living children, those children would inherit the estate, in equal shares.
What is a Living Trust?
What is a Living Trust?
A living trust is a legal document that holds property transferred by someone, called the Grantor, for the benefit of someone, called the beneficiary, that will be managed by someone, called the Trustee. The Grantor, beneficiary, and Trustee of a typical living trust are all the same people because the primary purpose of a living trust is to manage a person's assets for them during their lifetime, and allow them to pass that property to their surviving spouse, or children, without having to go through a court-supervised process, called probate.
During the Grantor's lifetime, the assets held in the living trust, often their house, their investment accounts and their larger bank accounts, can be used for that person's benefit in exactly the same way that the person was able to use those assets before they were placed in the trust. But, at their death, the trust agreement will dictate what happens next, distributing the trust's property as directed by the document.
Because the assets that have been transferred into the trust are legally owned by the trust (and not by the person who contributed those assets), the Grantor's estate will not have to go through probate because it will fall under a state's small estates limit, if their biggest assets are held in the trust and only a few, small assets are held in their individual names. Just having a living trust, though, isn't going to prevent a probate if the Grantor forgot to actually put their biggest assets (house, brokerage accounts, and so on) into the trust. It's entirely possible for someone to create a trust, ignore it for the next thirty years, and die with all of the major assets held in their own names, and not in the name of the trust. In that case, a probate will be required before any of that person's assets can be distributed to their beneficiaries.
For example, if a person whose home, brokerage account, and savings account had been transferred into their living trust, dies, only those assets that they held in their own, individual name would count towards their state's small estates limit for probate. If all that they owned outside of the trust consisted of their car, with a Blue Book value of $3000, a checking account with $ 4,000, and their household possessions, their estate would not be subject to probate and could be distributed to their beneficiaries without a court order and without the cost and delay of probate. However, if that same person never transferred their home, their brokerage account or that savings account into the trust, all of those assets would have to go through probate before they could be transferred to the trust's beneficiaries.
Is a Trust Registered or Stored Somewhere?
After someone dies, the family needs to locate that person's estate planning documents. Much to many peoples' surprise, there's no official state registry for this kind of thing where people send in their important documents before they die. Instead, people keep their Wills and trusts in safe places -- sometimes in a safe deposit box at the bank, sometimes in a fireproof safe or cabinet at home, and sometimes just in a special box or drawer at home.
If you are not certain where such documents are located, you just have to keep looking until you find them. If you can't find them, you may finally conclude that they just don't exist. If that's the case, then the person will have died intestate, which means that state law determines who inherits their property.
If you're not certain whether or not such documents exist, then you've got more of a detective project on your hands. There's no external thing you can find that will tell you for certain that a Will exists--you either find one or you don't. But in the case of a living trust, your clue to the existence of a trust will be account statements or property deeds that show the ownership of the account to be something like this, "Nila Smatherton, as Trustee of the Nila Smatherton Trust." If you find assets that are held by a trust, you'll need to locate the trust document to be able to transfer them. If you do find the trust document, your next step is to read it. If you ultimately cannot find the trust document, you'll need to work with a local estate planning attorney to transfer the assets via a court order. [LINK TO LIST OF LOCAL PROBATE COURT LINKS BY COUNTY?]
What to Look For When Reading the Trust
Here's what you need to figure out when reading a trust:
Who is named to serve as successor Trustee? This is the person with the legal responsibility to distribute the trust's assets as directed by the trust document.
Who are the trust beneficiaries? These are the people who will receive the trust's assets.
How are the beneficiaries supposed to receive their assets? Often, trusts will distribute assets to adult beneficiaries "outright and free of trust", which is lawyer-speak for giving those assets directly to them, with no strings attached. Children, or adults with special needs or issues managing money, will often be given assets to be held in trust to a certain age (like 30) or, perhaps, for their entire lifetimes.
What assets are owned by the trust? As asset has to legally transferred to a trust for that trust to be its legal owner. To determine what the trust owns, you'll be looking for deeds and account statements that show ownership like this, "John Doe, as Trustee of the John Doe Family Trust."
Was the Trust signed and notarized? An unsigned trust, or one that wasn't properly notarized is not legally valid.
Are there any Trust Amendments? A trust amendment changes a section of a previously signed trust.
To settle an estate that's held in a living trust, there are a series of steps that the Trustee will need to take. The beneficiaries and heirs will need to be notified of the death of the Grantor; the trust's assets will need to be identified and valued, the decedent's debts and expenses will have to be paid, the trust will need a tax identification number, a trust tax return may need to be filed, and, in the end, the trust's assets will need to be distributed to the beneficiaires.
What is an "Estate"? What is a "Small Estate"?
As "estate," simply put is the property that a person leaves behind at death. When a person dies, their real property, their bank accounts, their brokerage accounts, their retirement accounts, and their tangible personal property, such as their furniture, clothes, jewelry, and automobiles, are in their estate.
It is the Executor's job to collect, preserve, and ultimately distribute the assets that are in someone's estate. If an estate goes through probate, the Executor cannot distribute those assets to anyone without a court order, which is how a probate proceeding ends: the court issues an order that distribute's the estate's assets to the beneficiaries or heirs of the decedent.
But not all estates have to go through probate. If an estate is small enough, no probate is required, and an estate can be settled without court supervision. An estate that's small enough to be distributed without court supervision is called a "small estate."
How can you figure out if an estate has to go through probate? That depends on several things:
1. How big is the estate?
If a person's estate falls below a certain threshold, called a "small estates limit," then that estate does not have to go through probate before the assets can be distributed. Instead, after the executor identifies and collects a decedent's property, pays all the decedent's debts and taxes, the estate can be distributed to the beneficiaries or heirs without a court order.
The small estates limit, and which assets count towards it, vary by state. Click here to find out what the small estate's limit is for New York.
2. Did the person have a Will, a living trust, or nothing at all?
If a person dies and leaves behind a Willthat states who will inherit their property, then whether or not their estate must go through probate depends upon their state's small estate limit: if the estate falls below the limit, no probate is required. The Executor can distribute the property without getting a court order first. Each state's procedures for settling a small estate varies. Click here to find out how small estates are distributed in New York.
If a person dies and leaves behind a living trust that states who will inherit their property, then whether or not their estate must go through probate depends upon whether or not they funded that trust properly. Assets held in a living trust do not count towards the small estate limit, only assets that are held in an individual's name.
For example, the estate of a person who lives in California, where the small estates limit is $150,000, will not be subject to probate if that person's house and brokerage account are held in their trust, leaving only a personal checking account with $10,000 in it and car in their own name.
However, if that same person had created a living trust, but hadn't put their house or brokerage account into the trust, then that person's estate would have to go through probate, because the total value of assets held in that person's name at death would exceed California's small estate limit of $150,000.
If a person dies without a Will or a living trust, who inherits the estate depends upon state law. Each state has a set of laws, called intestacy statutes, that state who inherits when there is no Will.
If a person's estate falls below that state's small estates limit, then the estate won't need to go through probate. But if the estate exceeds the threshold, then it will have to go through probate.
3. What kind of assets did a person own?
Not all assets count towards the small estates limit. Assets held in joint tenancy, payable-on-death accounts, or transfer-on-death accounts will pass to the surviving joint tenant or the named beneficiary automatically. These assets don't count towards the small estates limit.
Retirement assets and life insurance proceeds also don't count towards the small estates limit, as long as there is a beneficiary named for these accounts. (If no person is named as a beneficiary, then these assets will be distributed, usually, to the person's estate, which means that they will count towards the limit.)
4. Is there a surviving spouse?
If a person dies and leaves behind a spouse, the estate will not be subject to a formal probate proceeding, even if the estate otherwise exceeds the small estates limit for that state. Assets passing to a surviving spouse can usually be distributed to that spouse by the use of simpler probate procedure.
Executor, Trustee: What's the Difference?
An executor is the person either appointed by the court, or nominated in someone's Will, to take care of the deceased person's financial affairs. In some states, this person is called the personal representative.
If there's a probate court proceeding, the court officially appoint someone--usually, the personnamed in the deceased person's sill--as executor. The court gives the executor a document granting authority to administer the estate, which is called letters testamentary in most states.
If there's no probate proceeding (because the estate is too small to require one), then the person named as executor still takes care of things, but doesn't have official authority from the court. If required, the executor can provide a copy of the deceased person's will and a document stating that there is no probate pending in the state. Click here to read about the small estates procedure in $state.
Here are the sort of things an executor does:
Secure and organize the deceased person's property, including a house and furnishings.
Make an inventory of what's in the estate.
Value the assets in the estate.
File the deceased person's last tax returns (and any back taxes)
Pay the deceased person's remaining bills.
If there's a probate, work with the estate's attorney to give the court the information it requires.
Ultimately, distribute the estate's property to the beneficiaries or heirs.
A trustee is the manager of the property held in a trust. The successor trustee is the person named in the trust document to take over the job of managing the trust after the person who established it, the grantor, dies or is unable to continue as trustee.
Here are the sort of things a trustee does:
Identify and gather all of the trust's assets.
Appraise or otherwise value the trust's assets.
Notify heirs and beneficiaries as required by state law.
Pay the trust's bills.
Get a tax identification number for the trust.
File the trust's tax returns, if required.
Ultimately, distribute the assets held in trust to the trust's beneficiaries.
Often, the trustee and the executor are the same person. But that doesn't mean there's no difference in their jobs. In practice, it boils down to this: If an asset is held outside of a trust, in the decedent's individual name, then the executor is in charge of it. If an asset is held in trust, then the trustee's in charge.
For example, if the Kate S. owned a brokerage account and transferred it to the trust before she died, the account's official legal owner would be "Kate S., as Trustee of the S Family Trust." After Kate's death, the successor trustee would be able to continue managing that account after giving the company a copy of Kate's death certificate and a copy of the trust document. But if Kate had never transferred that account into her trust, and it was owned in her name alone, it would be the executor's job to deal with that account, not the trustee's.
How to Order Certified Copies of a Death Certificate
After someone dies, certified death certificates become necessary and useful documents. You will need them, for example, to record the deeds necessary to change title to real property, to claim life insurance, to file estate tax returns, and to claim pensions or any other benefit available as a result of that person's death. This makes perfect sense, since the companies holding these assets do not want to distribute them unless they are certain that the decedent has actually died.
The funeral home that prepares a body for burial or cremation will usually order copies, and they'll ask you how many you need. For most estates, 5-10 copies is plenty.
But if you need more as the process of administering a trust or estate goes on, you can order more yourself by contacting the state or county's vital records office. Usually, the county office can provide you with the certificates more quickly than the state's office can. You'll want to contact the office in the county where the person died.
Different states call this office different things; in Texas, it's called the "local registrar"; in California, it's called the County Recorder's offfice. The cost to receive certified copies varies by state, and sometimes, by county. In Texas, the cost is $20 for the first copy and 3$ for each additional copy. In California the cost is $21 per copy. Many states require you to be an authorized individual, usually to a family member, funeral home director, a person authorized to receive a death certificate as a result of a court order, an executor, or an attorney to order certified death certificates, to avoid fraud.
Click here for a link to a website that shows you how to apply to each state's office.
Once you find the proper office, you'll probably need the following information to request a certified copy of death certificate:
Name of deceased
Date of death
City and county of death
What's the Difference between Real and Personal Property?
Many states make a distinction between personal property and real property when they set out the rules for which estates are small enough for either an Affidavit procedure or a summary probate procedure. What's the difference?
Personal propertymeans things that people own that are moveable, as in not fixed to the land. Examples are: cash, stocks, bonds, cars, vehicles, clothes, furniture and furnishings.
Real property means things that are land and things affixed to the land. Examples are: houses, and other buildings, as well as the property underneath them and the rights associated with the land, like water, mineral, and other rights.
What States Recognize Common Law Marriages?
Some states permit "common law" marriages. These states recognize a legal relationship between two people who lived together as if they were married, and held themselves out to the world as if they were married, but never legally were married under that state's laws. This can be relevant when a person dies without a Will, if their surviving partner wants to inherit as that person's spouse under state law, but doesn't have a marriage license.
Here are the states that recognize common law marriages now, or did in the past and still will honor such marriage if a relationship began before such common law marriages were abolished by state law:
Alabama (recognized by the courts, not expressly allowed by state law)
Colorado (after September 2006)
District of Columbia
Florida (if relationship began beore 1968)
Georgia (if relationship began before 1997)
Idaho (if relationship began before 1996)
Indiana (if relationship began before 1958)
Ohio (if relationship began before 1991)
Oklahoma (recognized by the courts, not expressly allowed by state law)
Pennsylvannia (if relationship began before 2005)
Rhode Island (recognized by the courts, not expressly allowed by state law)
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New York state levies an estate tax on estates that exceed a certain threshold. This amount is currently $3,125,000 until March 31, 2016, and $4,17,500 from April 1, 2016 until March 31, 2017, and scheduled to rise to match the federal estate exemption thereafter.
New York's estate tax rate is lower than the federal estate tax rate of forty percent (40%). New York's rate starts at 5% and increases to 16%. Even though the rate is lower, it is applied to the entire estate, if that estate exceeds the exclusion amount by 105%, not just on the portion that exceeds the exemption for that year.
Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person's Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.
The purpose of probate is to prevent fraud after someone's death. Imagine everyone stealing the castle after the Lord dies. It's a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that's been done, the court issues an Order distributing the property and the estate is closed.
If you're wrapping up the estate of a New York resident who died with an estate that's worth less than a certain dollar amount, you won't have to go through a formal probate court proceeding.
It doesn't matter whether or not the deceased person left a will; what matters is the value of the assets left behind. If the estate's value is under the "small estates" limit in New York, you can take advantage of a simplified probate procedure, often called a "summary probate." Instead of having a court hearing in front of a judge, you may need only to file a simple form or two and wait for a certain amount of time before distributing the assets.
In some states, it can be even easier: Inheritors can use a simple affidavit to claim assets. (An affidavit is a statement you sign in front of a notary, swearing something is true.) If you live in one of those states, you just have to wait a required period of time, then sign a simple, sworn statement that no probate proceeding is happening in your state and that you are the person entitled to inherit a particular asset--a bank account, for example.
When you are trying to determine whether or not an estate's value is below the New York small estates limit, the first thing to do is make a list of the assets. A simple spreadsheet or list will do. Not everything a person owns counts, though. For this list, include only the things that pass to heirs and beneficiaries by will or, if there's no will, by New York intestacy laws, which determine who inherits if there is no will.
Until a child is eighteen years old, they can't inherit property in their own name. Instead, an adult needs to manage that property until the child can manage it for themselves.
A child can inherit property in several ways. If a person dies, and leaves behind a Will or a trust, and names that child as the beneficiary, then it will be the Trustee's job to manage that child's property according to the terms of the document. If a person dies and makes a gift to a child under that person's state's Uniform Transfers to Minors Act, the child's money will be placed in a custodial account for that child's benefit to a certain age. Finally, if a person dies and leaves money to a child directly, or names that child as a beneficiary of a life insurance policy or a retirement account, a court will need to appoint a property guardian to manage that child's money to age eighteen.
Child as Trust Beneficiary
If a child is the beneficiary of a trust, the Trustee will need to get a tax identification number for that child's trust, open up a bank or brokerage account in the name of the trust (using that new tax id number), and then distribute the assets to the child as directed by the trust.
For example, if a child is the beneficiary of a trust to age twenty-five, and the trust directs the Trustee to distribute the money for that child's, "health, education, maintenance, and support," (which would be a typical distribution standard), it will be the Trustee's job to distribute money to that child until the child turns 25. After that, the trust would terminate, and the child would be in charge of managing and distributing the money themselves.
If you are serving as the executor or trustee of a deceased person's estate or trust, you are going to have to get a taxpayer identification number for the estate or the trust. You cannot use the deceased person's Social Security number, or use your own. There is one exception to this rule: if you are the surviving spouse, and everything is left to you either outright or in a revocable living trust, you can continue to use your own Social Security number for these assets, but that's because, essentially, they areyour assets.
This ID number, called an EIN ("employer identification number"), is like a Social Security number for the estate or trust. You'll need it to open a bank or brokerage account, and it's what the bank or other financial institution is going to use to report the interest earned on those accounts until they are distributed to the estate's or trust's beneficiaries.
The easiest way to apply for an EIN is on the IRS website, www.irs.gov. The process just takes a few minutes and, when you are done, the site gives you the EIN that you'll use for the estate or the trust. If you don't have access to a computer, you can fax in an application to this number: (859) 669-5760.
Wills and trusts get a lot of attention in the movies when it comes to inheritances, but in real life, life insurance often is the source of the biggest cash benefit to families and loved ones. And who gets that money usually has absolutely NOTHING to do with either a Will or a trust, instead, it is the policy's beneficiaries who will receive that death benefit.
When someone purchases a life insurance policy, they have to name primary and secondary beneficiaries. The primary beneficiary receives the death benefit if they survive the insured party; the secondary beneficiaries will receive that benefit only if the primary beneficiary does not survive the insured party.
In order to claim these benefits you'll need to know the following things:
Whether the decedent owned any life insurance
Who the beneficiaries are for those policies
What kind of policy it is
How to make a claim for the benefits
Read on to find out how to do each of these four things.
For example, if a husband, Sam, names his wife, Lani, as the primary beneficiary of his $1 million policy, and then his three adult children, in equal shares, as the secondary beneficiaries of that policy,
Retirement accounts, unlike almost any other asset that a person can inherit, are subject to income tax. That means that if you inherit an IRA or a 401(k), when you withdraw the money, you'll have to pay income tax on these withdrawals.
From the government's point of view, this makes a certain amount of sense. These are, after all, tax-deferred accounts. The decedent saved that money while he or she was working, didn't pay taxes on that money, and would have had to pay income tax on the assets when they withdrew them. So, if someone leaves you an IRA, and you withdraw the money, the government doesn't want to lose out on that deferred tax revenue. (This is a slight simplification of a complicated set-up, and some plans also hold after-tax contributions, which are not taxed upon withdrawal, but that's not the usual scenario.)
Property held in joint tenancy passes automatically to the surviving joint tenant (or tenants) when a joint tenant dies. It is probably the most common way that people own property together. No probate is necessary, just some paperwork. This is called "right of survivorship" and it makes the transfer of property upon death really easy.
Married couples can own most of their property this way: homes, cars, bank accounts, and brokerage accounts. Unrelated partners can own property as joint tenants, and sometimes parents will own property with their children this way, as well.
Capital gains taxes are taxes that you need to pay when you sell an asset that has gone up in value. You are taxed on the difference between what you bought the asset for (called "basis") and what you sold it for. Every piece of property has a tax basis. Generally, its the amount a person paid for the property. When you inherit an asset, you need to know what basis that asset has, so that, later, if you go ahead and sell it, you can calculate the capital gains taxes that will be due. (Currently, the federal long-term capital gains rate is 15% for most people; 20% + a 3.8% (23.8%) Medicaid surcharge for high earners.)
Generally, an asset is inherited with a basis equal to its date of death value. This is called a stepped-up basis, because an asset's basis is increased to reflect its value at the date of death. A step-up in basis is a big tax advantage, because it reduces the capital gains taxes due upon sale of an inherited asset. The higher the tax basis, the lower capital gains upon the sale of that property.
The parties are over. The decorations have been packed away. We are all back at work. And it's a new year. Here's a quick summary of the new gift, estate, and inheritance changes that came along in 2016.
1. The federal estate and gift tax exemption has been increased from $5,430,000 in 2015 to $5,450,000 in 2016. This number was set at $5,000,000 in 2012 by the American Taxpayers Relief Act, and indexed to inflation, so has increased each year since then. more...
If your spouse or parent dies without a Will, New York law determines who will inherit his or her property. These laws, called intestacy laws, are essentially state-written Willls that determine who gets the decedent's property. The word "intestate" describes a person who dies without a will. A person who dies with a Will is said to die "testate."
Generally, in intestate succession, property goes to close family members, starting with a surviving spouse and children, and then gradually widening out to parents, siblings, nieces and nephews, grandparents and their legal descendants, and more distant relatives after that. If absolutely no relatives can be found, then a decedent's property goes to the state.